The new French Law on emergency measures relating to the functioning of the French labour market for full employment, known as the "Marché du travail" Law, published in the French "Journal Officiel" on December 22, 2022, includes the following main provisions:
1. Creation of a presumption of resignation in cases of abandonment of position
When an employee abandons his/her job without justification, the employer usually dismisses the employee for serious misconduct. In this instance, the employee would remain entitled to public unemployment allowances.
The new law creates a presumption of resignation in cases of voluntary abandonment of job post by the employee after receiving formal notice (i) to justify their absence and (ii) to return at work (by registered mail or by hand-delivered mail against signed receipt) by the expiration of a period of time set by the employer. The “resigning” employee is thus deprived from French public unemployment allowances. This presumption of resignation does not apply in case of justified or legitimate absence (such as health or safety, strike, unilateral modification of the employment agreement by the employer, etc.).
Where there is disagreement concerning the termination of the employment agreement based on this presumption of resignation, a local employment tribunal must issue its decision in principle within one month on (i) the nature of the termination of the employment agreement (i.e., confirm whether it is a resignation or reclassify the termination as unfair or null dismissal) and (ii) its consequences (e.g., possible public unemployment allowances, severance payment, etc.).
A decree will determine how this new scheme will be applied.
2. Changes concerning job offers following temporary contracts
An indefinite-term employment agreement may be commenced with the employer at the end of a fixed-term employment, or with a beneficiary company at the end of a temporary assignment. The new law provides that job offers for permanent positions must be proposed in writing to perform similar functions, and creates a new obligation for the employer or beneficiary company to inform the French public employment fund (“Pôle emploi”) when temporary workers refuse such offers. The reform aims to encourage a return to employment, and a job seeker who refuses an offer a permanent job offer twice could be deprived of public unemployment allowances.
The modalities of application of these new rules must be determined by a decree.
3. Possibility to use temporarily a multi-replacement fixed-term contract to replace several absent employees
In France, the use of fixed-term employment agreements is strictly limited and regulated by law (limited to purposes such as temporary increases in companies’ activities, replacing absent employees and seasonal jobs).
In principle, a fixed-term replacement agreement can be concluded to replace a single employee (i.e., where necessary to arrange as many replacement fixed-term agreements as there are absent employees to be replaced).
As a temporary measure, the law renews a trial measure, allowing for the arrangement of a single fixed-term employment agreement to replace several absent employees, only in certain limited sectors of activity to be determined by a decree for a period of two years.
4. Codification of case law related to the electorate and eligibility for the professional elections of the French Works Council (CSE)
The law confirms the case law rules applicable to the electorate and the eligibility of employees who can be comparable to an employer (i.e., employees who have received a delegation of powers making them akin to a company representative or someone representing the company before employee representative bodies).
Employees comparable to an employer are voters during in-house professional elections (they can validly vote for a candidate if they meet the legal criteria), but are not eligible to run themselves, meaning that they cannot stand as candidates nor be elected as employee representatives.
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